Fla. Admin. Code Ann. R. 62-41.304 - Central Florida Water Initiative Area, Uniform Process for Setting Minimum Flows and Minimum Water Levels and Water Reservations

(1) Priority List. Prior to submittal to the Department for approval pursuant to Section 373.042(3), F.S., each District proposing a Minimum Flow or Minimum Water Level (MFL) or Reservation in the Central Florida Water Initiative (CFWI) Area shall:

(a) Hold a meeting among staff of the Department, and the St. Johns River Water Management District, the Southwest Florida Water Management District, and the South Florida Water Management District (the "Districts") to discuss the CFWI waterbodies proposed for inclusion on the Priority List;

(b) Notice and hold at least one joint public workshop within the CFWI Area with the Districts to discuss each district's proposed priority list applicable to the CFWI. Such notice shall affirmatively state that the Districts and the Department have held the meeting required by paragraph (1)(a), above.

(c) Priority Lists shall conform with the requirements set forth in Section 373.042(3), F.S., and subsection 62-40.473(9), F.A.C. In addition to those requirements, if there is an impact potential across Water Management District boundaries from withdrawals in the CFWI, the priority list shall specifically identify the cross-boundary impact potential as being from within the CFWI.

(2) Consistent Method for Establishing MFLs.

(a) When establishing or re-evaluating an MFL, the Districts shall comply with the requirements of Sections 373.042 and 373.0421, F.S., and Rule 62-40.473, F.A.C.

(b) When establishing or re-evaluating an MFL, the adopting District shall consider the unique characteristics of the waterbody and basin as determined using the best available information. The adopting District shall provide the technical information supporting any proposed MFL to the non-adopting Districts and the Department. Sharing of information shall take place prior to seeking independent scientific peer review or prior to publishing a Notice of Proposed Rule, whichever comes first.

(3) Status of the MFL Waterbody. When determining whether the flow(s) and/or level(s) of a specific MFL water body are below or projected to fall below the adopted MFL criteria, the District within which the MFL is located shall use the status assessment approach that includes a screening level analysis and a causation analysis, when applicable pursuant to the paragraphs 62-41.304(3)(a) -(c), F.A.C. This status assessment is independent from and not a determination of consumptive use permit compliance or environmental resource permit compliance. Permit compliance is a regulatory function that is not within the scope of this subsection.

(a) A screening level analysis, which includes the incorporation of changes in rainfall trends, must be performed for waterbodies in the CFWI area periodically following adoption to monitor the status of an adopted MFL.

(b) If the screening level analysis shows that the MFL is being met based on the flows or levels adjusted by rainfall trends, then no further actions are required beyond continued monitoring.

(c) If the screening level analysis indicates that the MFL is not being met, or is trending toward not being met based on the flows and levels adjusted by rainfall trends, the District will conduct a causation analysis to independently evaluate the potential impacts of various stressors on the MFL water body being assessed.

1. Factors other than consumptive uses of water (e.g., long-term drought) can cause the flow or level of a surface watercourse, aquifer, surface water, or spring to drop below an adopted minimum flow or level. The factors to be considered in the determination of causation shall be based on the use of best professional judgment and may include:

a. Rainfall or other climatic variables;

b. Consumptive use;

c. Land use changes or development;

d. Surface water drainage;

e. Changes in hydrology and hydraulics;

f. Geology/hydromorphology (e.g., sinkhole formation);

g. Water levels/flows in other appropriate water resources (e.g., nearby wells, lakes, streams, wetlands);

h. Ecological assessment information; and,

i. Other factors that can be reasonably shown to cause a change in the flow or level.

2. The tools used in the causation analysis shall be based on the use of best professional judgment and may include:

a. Double-mass analyses;

b. Statistical analysis of climate variables and flow and/or water level;

c. Stage and/or flow duration and frequency analysis;

d. Modeling (groundwater/surface water, ecological or water budget models);

e. Ecological tools;

f. Distribution of groundwater use and withdrawal rate history;

g. Aquifer water level trend analysis; and

h. Degree of aquifer confinement.

3. Based on the causation analysis, the District shall develop or amend a recovery or prevention strategy including any applicable rulemaking, as appropriate, consistent with the provisions of Section 373.0421(2), F.S.

(4) Development of MFL Recovery and Prevention Strategies.

(a) Recovery and Prevention Strategies shall be developed when required pursuant to and consistent with Section 373.0421, F.S., and Rule 62-40.473, F.A.C.

(b) When required, Recovery and Prevention Strategies shall either be developed for individual waterbodies or regionally.

(c) Recovery and Prevention Strategies may contain regulatory and non-regulatory provisions, as appropriate.

(d) The Recovery or Prevention Strategy must address existing uses, renewals or modifications of existing uses, and new uses that may impact the subject MFL.

(5) Consistent Method to Set Reservations.

(a) Water reserved from use shall comply with the requirements of Section 373.223(4), F.S., and Rule 62-40.474, F.S.

(b) A reservation adopted after the effective date of this rule shall specifically state, as applicable, whether the reservation is being used for the protection of fish and wildlife or public health and safety.

Notes

Fla. Admin. Code Ann. R. 62-41.304

Rulemaking Authority 373.043, 373.0465, 373.171 FS. Law Implemented 373.016, 373.019, 373.026, 373.036, 373.0363, 373.042, 373.0421, 373.0465, 373.171, 373.219, 373.223, 373.233, 373.229, 373.709 FS.

New Florida Register Volume 47, Number 096, May 18, 2021 effective 6/21/2021.

New 6-21-21.